What was Tenancy Tribunal case 4560510 about?

The tribunal order states: Gregory Neil Robinson must pay B E Halstead Limited $4,952.22 immediately,

How much money was awarded in case 4560510?

Compensation: Failure to maintain /…: $5,000.00 awarded to tenant; Electricity Outgoings: $976.51 awarded to landlord; Property Damage: $1,000.00 awarded to tenant; Rent Arrears: $10,925.71 awarded to landlord

What type of tenancy dispute was case 4560510?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4560510?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9611727-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4560510 about?

The tribunal order states: Gregory Neil Robinson must pay B E Halstead Limited $4,952.22 immediately,

How much money was awarded in case 4560510?

Compensation: Failure to maintain /…: $5,000.00 awarded to tenant; Electricity Outgoings: $976.51 awarded to landlord; Property Damage: $1,000.00 awarded to tenant; Rent Arrears: $10,925.71 awarded to landlord

What type of tenancy dispute was case 4560510?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4560510?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9611727-Tribunal_Order.pdf.

51 The Coastal Highway, Appleby, Richmond 7081 Tenancy Tribunal Case 4560510 — Rent arrears

Claims and awards in Tenancy Tribunal application 4560510 — net $4,952.22 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$10,925.71		Rent arrears
Electricity outgoings	$976.51		Electricity outgoings
Compensation: Failure to maintain / quiet enjoyment		$5,000.00	Failure to maintain / quiet enjoyment
Exemplary damages: unlawful entry - s 48(4)(a		$1,000.00	unlawful entry - s 48(4)(a
Total award	$11,902.22	$6,000.00
Net award	$4,952.22
Total payable by Tenant to Landlord	$4,952.22

Claims and awards in Tenancy Tribunal application 4560510 — net $4,952.22 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$10,925.71		Rent arrears
Electricity outgoings	$976.51		Electricity outgoings
Compensation: Failure to maintain / quiet enjoyment		$5,000.00	Failure to maintain / quiet enjoyment
Exemplary damages: unlawful entry - s 48(4)(a		$1,000.00	unlawful entry - s 48(4)(a
Total award	$11,902.22	$6,000.00
Net award	$4,952.22
Total payable by Tenant to Landlord	$4,952.22

Order

Gregory Neil Robinson must pay B E Halstead Limited $4,952.22 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing. Mr Robinson had approval for his sister, Ms Juliet Robinson, to attend as a representative to assist him.
The tenant has applied for compensation and exemplary damages.
The landlord has applied for rent arrears, compensation, and electricity outgoings.
There was a preliminary matter to be resolved. A previous order in favour of the landlord was made on 2 March 2023 (TT4480482) by me. That order was for termination for rent arrears, rent arrears of $8,604.00, electricity outgoings of $634.55, and the application filing fee of $20.44, less the bond of $950.00 (now with the landlord). The landlord name was suppressed in that order.
The tenant lodged an application for a rehearing. This was granted and a rehearing de novo (meaning anew,) set down to be heard by another adjudicator. The tenant had indicated a counterclaim was intended and that was allowed for in the timetabling. A stay on proceedings was made. No tenant application was processed by the rehearing date of 27 April 2023. The landlord did not attend the hearing. As noted in the order that same day:
Because the landlord has brought the application for which the rehearing has been granted de novo, it is incumbent that the landlord appears to prosecute their claims against the tenant. I am not satisfied from the previous information adduced by the landlord that I have before me all the written information that I need to make a proper determination on the landlord’s claims.
The landlord/applicant at about 11am emailed the Tribunal to advise that he will not be attending today’s rehearing on grounds that the tenant has not complied with the previous directions of the Tribunal.
Given the above, the only order made on 27 April 2023 was for immediate termination as the failure by the tenant to make the current rent payment for the week of 1 April 2023 within 2 working days meant that the earlier stay of proceedings on termination lapsed and the landlord became entitled to enforce the order of possession provided in the first order. By this time such an order was somewhat moot as the tenant had already moved out, albeit with possessions remaining at the premises. The tenant committed to removing those by Sunday 30 April 2023.
The landlord then lodged an appeal to the District Court on 3 May 2023 of order TT4480482. The appeal is yet to conclude. The judge has directed these applications conclude before any further consideration of the appeal, as the conclusion here may resolve all matters. I advised Mr Halstead it would be for him to advance or withdraw his appeal.
The landlord application in this matter (4646169) was submitted on 3 August 2023. That application sought further rent arrears, electricity costs, and compensation for carpet cleaning.
The situation above was reviewed with both parties during the preliminaries of this hearing. I explained the Tribunal had no sway over the appeal process but varying the landlord’s application to include all rent arrears and electricity costs to the end of the tenancy would appear to be an expeditious use of everyone’s time. The tenant agreed. While expanding the landlord’s application to effectively encompass his prior claim, I fully support the conclusion of the previous adjudicator in his decision. Mr Halstead’s written advice to the Tribunal on 20 April 2023 that “he was not willing to attend a re-hearing while rent arrears are building up...” made a dismissal almost a certainty and any future consideration no certainty.
For the benefit of both parties, a party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Landlord application
The landlord sought rent arrears, electricity costs, and compensation for carpet cleaning. Rent arrears
The rent summary produced by the landlord is sub-optimal and this has been pointed out before in other applications. Despite that, the parties were able to work through the summary and enable a determination to be made.
The rent summary was difficult to follow, in part due to what was a messy payment history at the commencement of the tenancy. The tenancy agreement clearly states the bank account for rent to be paid into but the preference of the tenant was to pay cash, this was done erratically and in varying amounts at first. This was reluctantly accepted by the landlord during the first month or so of the tenancy. Thereafter rent payment via bank transfer commenced and a more auditable payment history could be established.
There was lengthy discussion about the initial payments as recorded. The tenant believed other money had been paid and not been accounted for. Having heard from both parties, and given the instigation of the cash payments was on the tenant, I have accepted the landlord’s accounting as presented. The absence of receipts compounded the situation and that is addressed as part of the tenant claims below.
The 2022 payments appear true and accurate. A number of these payments are at a reduced rent as self-determined by the tenant.
The 2023 period was queried by the tenant. Provision was made for a banking summary to be provided and reviewed after the hearing to evidence all payments. It was agreed no cash had been paid so the tenant banking history would confirm payments. A second reason for provision of this evidence was to clarify if the tenant had made any payment towards electricity that he believed he had.
Given the rehearing and stay, the actual exit of the tenant is confused. The tenant stated at the rehearing that he had left prior (18 April) but he acknowledged there were still possessions of his at the premises. That orders records Mr Robinson “undertakes to remove his remaining chattels such as vehicles, aviaries and motorbike by this weekend.” Mr Halstead sought rent for the period the tenant’s possessions remained, claiming he was unable to commence the reletting process. After some discussion and questioning, I accept there were still some items there (the tenant said he had sold some items and they were pending uplift) but I was not convinced by the evidence that Mr Halstead was prevented, due to any remaining possessions, from commencing reletting as he desired. As indicated at the hearing, I have determined 30 April 2023 as the effective date for rent liability to cease.
Given the reconciliation and further banking evidence, I have determined that the rent arrears owing, based on the weekly rent of $475.00, a tenancy that commenced 4 September 2021, and rent liability that ended 30 April 2023 (less one week of rent offered by the landlord due to flooding), equates to $10,925.71. This is ordered. Electricity outgoings
The landlord uses a check meter reading to calculate electricity and generate an internal invoice. This had been the basis from the commencement of the tenancy and previous electricity invoices had been paid, apparently by WINZ after presentment. As alluded to earlier, the tenant thought he had made further payments towards electricity that could be proven. This was later retracted by Ms Robertson after reviewing the banking history.
As noted in my first order:
The premises electricity supply is via another dwelling where the revenue meter resides. A check meter is installed at the premises. The landlord reads and uses that kWh consumption record to derive the exclusive use of electricity at the premises verses the revenue meter. This method of metering and accounting is acceptable, and the unit costs used are reasonable.
That remains my conclusion. Now satisfied that no additional payments towards the electricity have been missed in the accounting, I accept the invoices as a basis to establish the final electricity owing as $976.51. This is ordered. Carpet cleaning
The landlord sought compensation for a carpet cleaning cost of $140.00. This was supported by an invoice for the work but no clear evidence of the carpet condition being in such a state that the tenant should be liable for this cost. I am mindful of the overall issues regarding the premises traversed in this order.
This claim is not proven and is dismissed. Tenant application
The tenant made a large number of claims. These are addressed below, with a final section detailing compensation and exemplary damages.
Two witnesses were called by the tenant. One, Mr Wayne Taylor, was the prior tenant (Mr Robinson was a flatmate near the end of that tenancy), the second was Ms Emma Webster, the other parent of their son, their son has shared custody with him mostly residing with Ms Webster. No receipts for rent
A landlord must give a written receipt immediately for any rent paid by cash. See section 29(1) and (2)(a) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $350.00. See section 29(5) and Schedule 1A Residential Tenancies Act 1986.
The confused rent summary during the early stages of the tenancy have been acknowledged. I heard that cash in envelopes would be left in Mr Halstead’s car or elsewhere, typically without prompting. Some money was paid directly from a flatmate to the landlord.
I accept the landlord is technically in breach of s 29 as no receipts were provided but it would be inequitable to order any exemplary damages, given my view that the tenant was the instigator of the cash payments, and the landlord the reluctant recipient.
I make no orders pertaining to any s 29 failures by the landlord. Bond lodgement
Mr Robinson claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The tenancy commenced on 4 September 2023 and the bond was paid on 23 September 2023. There was no failure of the landlord and this claim is dismissed. The question of who actually paid the $950.00 bond is unresolved. The tenant claims he did. Mr Halstead claims B E Halstead Limited paid it. If so, this is curious as there is no obligation on a landlord to contribute to what is a tenant funded bond, nor any banking record produced. Further, there was confusion regarding the bond as the Bond Centre stated it received $1,700 from Mr Halstead on 23 September 2023. He advised that was an administrative error and subsequently corrected. The bond of record at the time of release was $950.00.
I remain uncertain whether the bond was personally funded by the landlord or from initial cash payments by the tenant. In the absence of evidence to the contrary, I have treated the bond of $950.00 lodged as tenant money as intended of such a lodgement. Unlawful entry
Mr Robinson claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
It appears Mr Halstead was in the habit of leaving documents in the kitchen for the tenant. Ms Robinson recounted one occasion when she returned with her brother and found a letter or note left inside. There is no obvious conclusion other than an entry by the landlord to place it there. The previous tenant appeared as a witness and also stated Mr Halstead had entered the premises during his tenancy, without notice or permission.
Mr Halstead is an experienced landlord and claims of his unlawful entry have been made in applications heard by me before. I find he has unlawfully entered the premises. These entries were unlawful acts, were intentional, and exemplary damages should follow. Failure to maintain
Section 45 RTA places a number of requirements on the landlord. In part, it requires a landlord must provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, comply with any relevant enactment in relation to buildings, health and safety.
It is well settled that, the landlord’s obligation under s45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
The tenants claim that the landlord failed to remedy several repair issues within a reasonable timeframe: a. Flooding in the lounge, and resulting moisture and mould damage in the kitchen, b. Sewerage overflow, c. Door window broken, leaving the premises insecure, d. Heat pump not working, and e. Electrical problems with power points
I consider each issue in turn. Flooding
This issue had the most significant impact on the tenant.
With the benefit of hindsight is now known that part of the concrete foundation under the lounge floor was an addition to the premises some years ago (before the current owner) and that addition compromised the waterproofing of the building foundation as the seams between the old and new foundation were not waterproofed. Compounding the effect that was a historic external stormwater soak that received stormwater from one guttering section of the roof that was effectively covered by the concrete.
I heard from Mr Taylor that during the previous tenancy he suffered from dampness in the lounge. He recounted instances of flooding after rain that resulted in the carpet being wet. A dryer was used after such events. Mr Taylor said the heat pump was not working at that time. He believes the house was making him unwell and that was the reason for his leaving. Mr Robinson was residing in the house during that tenancy and stated that he was aware of the problem.
I expressed some curiosity as to why Mr Robinson would have taken on the tenancy given the known issue of dampness. Mr Robinson replied that he had an inkling of the problem and figured he could resolve it.
I consider the landlord was aware of the problem but was focused on the roof as the most likely source of the water. Contractors were engaged to look for roof leaks. New guttering was installed.
Ms Webster visit the property during drop-off and pickup of her 13 year old son when he was staying with Mr Robinson. Such stays were typically every second weekend, under an informal parenting arrangement. Ms Webster told how her son suffers from asthma. Due to concerns late in the tenancy regarding the condition of the premises (August 2022) and possible impacts on her son’s health, she insisted her son could not stay overnight. Daytime visits continued.
When asked about when she first became aware or concerned regarding dampness in the premises she recalled noticing wet carpet sometime around August 2022. She saw Miss Robinson pumping water out of the lounge and approach Mr Halstead regarding the problem. It appears that from the commencement of the tenancy until winter 2022, no noticeable issues that may have impacted her son from any dampness were apparent to her. Given the earlier evidence of Mr Taylor regarding the dampness he experienced I am left to conclude that the impact on the premises from any soak pit overflow was seasonal, typically worse during the winter period when both the water table and rainfall are higher.
During June 2022 Mr Robinson took it upon himself to remove the section of carpet and underlay from the lounge. He observed water ingress through the concrete seams and proceeded to drill a hole in the concrete. This released further water under pressure, confirming his suspicions. He then expanded the hole and used a pipe and pump system to remove water on the occasions water would rise sufficiently to be released through the hole. The pictures below were provided by Mr Robinson and gives a good impression of the location and initial control method adopted.
The solution stopped water ingress but required active management and use of the pump. I heard from Mr Robinson that that would require him to return to the property during heavy rain events so he could start and maintain the pump. Depending on the rain and its duration he stated this would sometimes require him to stay up during the night, one other time he had to leave a social event to return home to manage the water. He claims this pumping took a toll on his pump that ceased to work. An alternative pump was provided by Mr Halstead.
While uncertain of the exact date, Mr Robinson stated that during August he cut a trench outside in diverted the stormwater downpipe away from the soak pit to the trench. I heard that the landlord later enhanced the initial trench using contractors.
These steps were effective in eliminating the water ingress but Mr Robinson claims the effects of the damp continued past that date.
A commercial dryer was deployed after the heavy August flooding but prematurely removed by the landlord, while the area was still damp. It was removed by direction of the landlord before completion. No justification for this decision was provided by Mr Halstead. Coupled with the absence of a working heat pump that may have assisted the drying, I consider there would have been a prolonged drying period with an extended impact on both the tenant and chattels such as the curtains (while not addressed in detail here, the tenant provided photos and supporting written statements regarding mould problems).
On 20 July 2022 Mr Robinson served a breach notice on Mr Halstead. This claimed the landlord failed to comply with the healthy home standards and was neglecting the property maintenance. The notice required the landlord remedy this by hiring the appropriate tradespeople to remove mould and moisture, stop water entering the house, and replacing damaged carpet, curtains, lino and Gib board. This notice was not addressed. Sewage
The premises are served by a septic tank sewerage system. Mr Robertson cited at least two instances of sewage overflows and produced photos of the waste on the exterior paved area. The septic tank was emptied during the tenancy. This issue was raised in the application but not in the written submissions. I accept the overflows will have been concerning but given the lack of specific detail on the events and likely cause, as well as any impact beyond what could obviously be inferred from the photos, I do not make any orders pertaining to the sewerage. Windows
Two windows were broken during the tenancy. One was a glass pane in the main entry door, the second was in the sliding door.
Both windows were repaired by the landlord at his expense. Mr Robinson experienced the greatest impact from the missing glass pane on the door because the absence made it easy for any person to potentially unlock the door by easily reaching through. It took longer than expected to have the glass pane replaced. That in part is due to the glazier who was engaged to make the repair, some installation errors required a return visit to complete the job. Mr Robinson, when asked why he did not cover the gap, stated Mr Halstead had told to leave it as it was. When I asked Mr Halstead why he persisted with the glazier when delays were apparent, rather than engage another glazier, he stated that the glazier used was his preferred supplier who was already set up as payee. It took some two weeks to get the window fixed.
The second window was broken after the tenant’s umbrella was blown into sliding door. Mr Halstead arranged and paid for the replacement glass and did not seek reimbursement from Mr Robinson. I have factored this into any compensation consideration as it would appear a claim against Mr Robinson for the cost may have been justified.
Given that, on balance, I find any delays in the window replacement should not be compensated. I accept the missing glass pane in the door lessened the security of the premises but I struggle to see why some temporary mitigation was not instigated. This touches on a secondary issue raised regarding draught from the gap. Mr Robinson had said this was not an issue of significance as he could close an internal door. Later, Ms Robinson revisited the issue of the draught, believing it was more significant. Given Mr Robinson was living at the property I put more weight on his stated view and I do not find there are grounds for compensation relating to draughts from the window cavity. Heat pump
Mr Robinson stated the heat pump never worked. He said this was not a problem for him as he preferred to use the wood burner. It does not appear to have been raised with Mr Halstead as an issue but Mr Taylor said in his evidence that the heat pump not work during his prior tenancy and this was something he had raised with the landlord verbally.
I consider it more likely than not the heat pump was not working at the commencement, and during this tenancy. While acknowledging Mr Taylor’s evidence regarding the last tenancy, the lack of any notice to the landlord regarding the heat pump not working means I do not find it evidenced that this was a failure to maintain by the landlord as he was not notified. While Ms Robinson believed the landlord should have tested it prior, I cannot be sure such a step would have identified the fault. I note the landlord has made a suggestion regarding Mr Robinson as being responsible for the cost of repair of the heat pump when that was completed at the end of the tenancy. I do not find that has any basis in fact and it is a landlord cost.
While Mr Robinson’s preference may have been to not use the heat pump, I have considered the desirability of a working heat pump to assist in drying the internal wet areas after the flooding events. Electrical problems with power points
Mr Robinson claimed a number of power points were not working during the tenancy. I have no evidence of this being raised with the landlord as an issue I therefore find no grounds for any orders related to any failure of the landlord. Notice to quit
Mr Robinson claims that the landlord has breached their obligations under section 60AA.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
I do not find this claim is supported. I have no notice to terminate served by Mr Halstead that might be in breach of s 60AA. I do have a letter sent by him giving notice of his intention to file an application for termination (incorrectly dated 10 January 2022 – it should be read as meaning 2023) and suggesting Mr Robinson might vacate earlier.
This claim is not proven and it is dismissed. Quiet enjoyment
Mr Robinson claims the landlord caused and permitted interference with his quiet enjoyment.
The claims are twofold.
The first regards Mr Halstead’s activity in the outdoor area of the premises. Mr Robinson said the landlord had sprayed in that area without notice, also causing some of his plantings to die. The challenge I have with this claim is the lack of evidence to support the spraying took place in an area that might be deemed the exclusive area of the tenant. The premises sit on a working farm and I have no evidence of the respective boundaries. That said, in such circumstances I would expect the landlord to establish such demarcation at the tenancy formation. The second problem is the lack of any subsequent notice to the landlord regarding any spraying and any subsequent damage.
The second pertains to difficulties experienced by the tenant with the landlord’s son. He resided nearby and there were at least two events where the behaviour of the son adversely impacted the tenant. I accept the general outline of events and impact on the tenant from these. Section 38 requires a landlord shall permit any interference with the quiet enjoyment of the tenant (s 38(2) RTA). Having heard from both parties regarding these events, I find the landlord took appropriate steps by removing his son from the area after the events. I heard his son later returned but this was on or around the initial termination order of this tenancy.
There is a third impact on quiet enjoyment, that being the unlawful entries by the landlord. These were not specifically cited here by the tenant but he felt the need to place a notice on his window. A photo of the notice by the tenant (undated) was provided. It read in part: To Brian Halstead Do not enter house unless I am at the property. So you can fix concrete floor. Phone me on 027 NNN NNNN for a time to suit both.
This note was considered in the evidence and impact assessment before the exemplary damage award for the unlawful entries and no other compensation is awarded. Compensation
Section 77(2)(n) RTA allows the Tribunal to grant general damages where a landlord or a tenant has breached a provision of the RTA. These damages can include an amount for distress and pain and suffering.
The factors the Tribunal should take into account when making a compensation award are: a. The nature of the breach b. The duration of the breach c. The effect of the breach.
The tenant sought compensation of $5,000. He is best placed to quantify the impact and appropriate compensation he believes appropriate. It is not unusual for tenant compensation claims to be significantly higher than that later determined by an adjudicator. That is not the case here.
I made my own compensation calculations based on rent rebates for the winter 2023 period, and a lesser ongoing rebate amount to reflect the legacy conditions and impact on the tenant, as well as other issues such as quiet enjoyment.
The sum of these calculations were greater than that sought by the tenant, but not significantly. On that basis I have capped compensation at the $5,000.00 as sought by the tenant in his application. I consider he has established grounds for a compensation award of that amount. The landlord has previously provided compensation of one week rent (and allowed for in the rent summary), and this was factored my compensation calculation. I have adopted the lower tenant claim. I have treated the tenant claim of $5,000 as exclusive of any prior landlord compensation.

Should exemplary damages be awarded?

As I have determined that the landlord committed unlawful acts I must decide if it is appropriate to award exemplary damages.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA
I find Mr Halstead did unlawfully enter the premises. I consider this is a practice adopted that he well knows he should have ceased. Such enter is unlawful and exemplary damages can be awarded up to a maximum of $1,500.00. Having considered the factors in s 109(3) RTA I consider it just to make an exemplary damages order. I have set the order at $1,000.00. While there is no hard or fast rule, consideration for first time unlawful acts may attract one-third of the maximum. In this instance, I have adopted a two-third amount to reflect the prior times and repetition since but recognised the entries were for limited purposes and constrained to the living area. Future repeat behaviour may justify the full amount.
Although there were technically other breaches, it is not considered appropriate to make any further award of exemplary damages. To do would be disproportionate or unreasonably punitive, having regard to the relatively technical nature of the breaches raised near the end of the tenancy, and the relatively minor impact on the tenant of these. One potential exception was the failure of the landlord to maintain, where serious consideration of the landlord failings under s 45, and the threshold to determine such failings to be an unlawful act that should attract exemplary damages (s 45(1A)), was given. In this instance. I have given the landlord the benefit of the doubt, considering especially the difficulty in ascertaining the cause of the internal water ingress. Application filing fee
Given both parties have been successful in aspects of their respective application, I leave each party to carry their own cost of filing. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord did not seek suppression in this application. The tenant did. While the tenant has enjoyed substantial success in his application, I must consider both applications. Doing this, I conclude that the significant rent arrears (even after the offset due him) and exit delay and removal of contents are such that ordering tenant suppression is not an automatic outcome and I decline to exercise my own initiative to do so, considering the facts of both applications and balancing the tenant and public interests. If the landlord had applied again for suppression, my conclusion regarding any such request would have been the same as here for Mr Robinson.

Tenancy Tribunal case 4560510 — Rent arrears at 51 The Coastal Highway, Appleby, Richmond 7081

At a glance

Tenancy Tribunal case 4560510 — Rent arrears at 51 The Coastal Highway, Appleby, Richmond 7081

At a glance

Award balance

Claims & awards

Order

Reasons

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions